1482 University of California, Davis [Vol. 44:1407 ringside seats to the testimony and challenges of the litigants and daily exposure to the diet of criminal cases in the region and practices of the area’s police. They are, therefore, well situated to spot whether there is a need to inquire as to a potential pattern or practice of violations.
Data-development remedial rules more delicately navigate the tensions between the need for a remedy that imposes sufficient costs to deter violations and the problem of overdeterring vigorous law enforcement. The costs of data generation are borne by a department rather than an individual officer, avoiding the chilling effect that is produced by damages suits against individual officers. Moreover, data generation produces the social good of better information for the public and avoids the controversial critique of the exclusionary rule that the “criminal goes free when the constable blunders.”393
B. Enriching Public Knowledge and Deliberation When the Constable Blunders
It is better, where possible, to have the police voluntarily cooperate in the production of data and, if needed, design of institutional reforms. It is cheaper to change a cooperating entity rather than imposing clumsy top-down measures from a distance on a recalcitrant organization. The penalty default strategy thus has the benefit of giving the police a push to cooperate in improved information-gathering to gain more rigorous data to guide decisionmaking and public deliberation. A push is needed to facilitate better judicial as well as public deliberation. Even as it has ratcheted back the availability of a remedy, members of the Supreme Court have suggested the possibility that the Court’s stance on such matters as illegal arrests and searches due to police record-keeping errors or knock and announce rule violations might shift if data were supplied suggesting a pattern or rash of violations.394 Yet how are individual criminal defendants, who are often indigent and represented by overworked appointed counsel, to come by the data? A data-development remedial rule would help overcome the structural barriers to better-informed decisionmaking.
393 See, e.g., United States v. Colbert, 474 F.2d 174, 179 (1973) (Goldberg, J., dissenting) (“It may offend many people that under our system of criminal justice the criminal goes free when the constable blunders, but such is the law of the land.”).
394 Herring v. United States, 129 S. Ct. 695, 698, 704 (2009) (suggesting that exclusionary rule might apply to illegal arrests and searches due to record-keeping errors “where systemic errors were demonstrated”); Hudson v. Michigan, 547 U.S.
586, 604 (2006) (Kennedy, J., concurring) (“If a widespread pattern of [knock and announce rule] violations were shown . . . there would be reason for grave concern.”).
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The benefits of better data for public deliberation over police tactics is demonstrated by the New York City Police Department’s collection of data on Terry stops and frisks. Political momentum for data-gathering ignited after mass protests erupted in New York over the fatal shooting of Amadou Diallou, an unarmed West African immigrant in the Bronx by four police officers in 1999.395 The Center for Constitutional Rights sued the city for data after the Diallou killing.396 The resulting data-gathering measures adopted have documented the disparate impact of Terry stops, showing for example that Black and Latino people were nine times more likely to be stopped than Whites in 2009.397 Hard-fought lawsuits by impact litigation groups have begun an information cascade when it comes to the problem of racial profiling that has festered for decades. About half of the states have introduced racial profiling legislation, often requiring data collection, and some police departments have also begun voluntarily collecting data on the issue after successful suits in other jurisdictions.398
An unarmed man should not have to be shot to death before costly institutional reform impact litigation succeeds in bringing police practices to light. Decades should not have to pass before costly and slow civil suits begin to prevail in securing consent decrees for reform and data-gathering. Structural reform civil suits, whether brought by organizations like the ACLU and NAACP or by the Department of Justice under its 42 U.S.C. § 14141 authority are extremely costly, slow, and rare. Successful suits by individuals are even less likely because they depend on a victim having the access to resources and extraordinary determination to bring civil suit — which may falter on the police-protective qualified immunity doctrine.
Indeed, compared to the host of criminal cases in which the law has been clarified by defendants seeking exclusion of evidence, civil cases presenting criminal procedure questions are rare indeed. Professor Donald Dripps has observed that only four damage actions against police have lead to substantive Fourth Amendment decisions by the Court, laying aside a small cluster of cases on the execution of search warrants.399 A data-development remedial strategy would lower the
395 Al Baker, New York Minorities More Likely To Be Frisked, N.Y.TIMES, May 13, 2010, at A1; Jane Fritsch, Four Officers in Diallo Shooting Are Acquitted of All Charges, N.Y.TIMES, Feb. 26, 2000, at A1.
396 Baker, supra note 395.
397 Id.
398 Buerger & Farrell, supra note 325, at 273-74.
399 Dripps, supra note 374, at 209, 235.
1484 University of California, Davis [Vol. 44:1407 obstacles to obtaining information to facilitate detection of problematic police gaming. Moreover, the prospect of monitoring through data generation exerts its own control function. The greater transparency produced by data generation is a strategy of police Panopticism400 in which police subject to the watchful gaze of courts, the public and self-surveillance behave in better conformity with expectations.
CONCLUSION
The specter of police gaming haunts constitutional criminal procedure, difficult to detect and something we have been afraid to fully confront. Police gamesmanship presents a dilemma because on the one hand, the law and polity want police to be aggressive and willing to get muddy in dealing with the bad guys. On the other hand, we are worried enough about overly aggressive policing to enshrine constitutional protections and a phalanx of rules against it because policing affects the lives of everyone, everyday, criminal or innocent. Because of this ambivalence, constitutional criminal procedure doctrine has been murky and reticent in defining the line between fair and foul play. But defining this line is crucial to conditioning better behavior and alleviating one of the pressures behind the ever-proliferating complex of piecemeal patches. This Article’s exploration of the line between desirable police innovation and problematic rule subversion and taxonomy of the main forms of problematic police gaming are offered toward this goal.
With this foundation, we have a clearer vantage to conceive of ways to curtail undesirable gaming and imagine a remedial regime that can better inform deliberation and surface problems earlier as well as deter. Police gaming is not going to go away altogether. When it comes to such tough problems that are submerged and not wholly soluble, however, surfacing the problem and mitigating the harm are worthy goals.401 In a time of foment, as the Court adjusts constitutional criminal procedure’s rules and remedies, leading to numerous new criminal procedure cases decided in recent years, the time is right for creative approaches that supplement constitutional
400 See MICHEL FOUCAULT, DISCIPLINE AND PUNISH 201 (1991) (developing as metaphor for control notion of Panoptic prison in which prisoners arrayed in transparent cells self-police).
401 See Stuntz, supra note 20, at 2142 (“[W]ith unsolvable problems, mitigation of harm is a worthy goal.”).
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criminal procedure’s predominant decision-framing approaches and remedial strategies to better address the problem of police gaming.
Incorporating anti-gaming standards in high-risk zones where the temptation to game is highest and monitoring is hard can help trigger internalization and implementation of constitutional values and steer officer judgment. Standards are also more elastic than brittle bright line rules and can block gaming through interpretation without the need for fashioning new rules.
Data-development remedial rules can improve the aim of deterrence through an approach that leads to police rather than prosecutors internalizing the costs. Data-development remedial rules also allow society to gain in information and deliberation rather than lose when the constable undermines constitutional protections. Calibrating incentives to encourage voluntary police self-monitoring and data generation has the dual benefit of more efficient monitoring and the generation of information to surface problems earlier and permit better-informed deliberation and reform.